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2012 DIGILAW 810 (UTT)

HARJEET SINGH KOCHHAR v. STATE OF UTTARAKHAND

2012-12-31

SUDHANSHU DHULIA

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JUDGMENT Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. Gurinder Singh, Mr. Neeraj Garg and Mr. Devesh Ghildiyal, Advocates for the petitioners, Mr. Paresh Tripathi, Additional Chief Standing Counsel for the State of Uttarakhand and Mr. D. S. Patni, & Mr. Piyush Garg, Advocates for the respondent no.3. 2. There is a property bearing No.10 (new no.81/10/), at Curzon Road, Dehradun, Uttarakhand. The last occupant and the owner of the property Smt. Krishan Kaur died in the year 1990. Since no one immediately came forward to claim the said property, the Tehsildar recommended that since the property now stands abandoned and has no claimants, the property must be taken over by the Government as it should devolve on the Government. Thereafter, the State Government through the District Magistrate, Dehradun has passed an order on 23.11.2007 taking over the said property by invoking its power of escheat under Section 29 of the Hindu Succession Act (hereinafter referred to as the Act) on ground that there are no legal claimants to the said property. When the petitioners, who claimed to be the heirs of the deceased Smt. Krishan Kaur, were aware of the above order, they claimed rights on the said property and moved a representation before the District Magistrate, but, as they failed to get any relief before him, they filed a writ petition bearing No.1396/2011 (M/S) before this court in which an interim order was passed staying the operation of the order dated 23.11.2007. Ultimately, the said writ petition was allowed vide judgment dated 15.03.2012 quashing the order of the District Magistrate dated 23.11.2007 and the District Magistrate was directed to give a wide publicity regarding the said property and invite objections from the claimant and consequently, pass an appropriate order therein. Consequently, a notice was issued by the District Magistrate in the newspapers which was only responded by the present petitioners before this Court who claimed to be the legal heirs of the deceased, but, their representation was rejected by the District Magistrate on the ground that there is no evidence on record by which it can be said that they are the heirs of the erstwhile owner of the property as there is no declaration to that effect in their favour. The said order was passed on 11.05.2012. Inter alia, it is this order which has been challenged by the petitioners before this Court. 3. The said order was passed on 11.05.2012. Inter alia, it is this order which has been challenged by the petitioners before this Court. 3. The first contention of the petitioners is that before invoking the power under Section 29 of the Act, the District Magistrate should have given wide publicity to the fact and the onus was upon the District Magistrate to show that there are no claimants to the said property and only then it would escheat with the Government. By shifting the onus upon the present petitioners, the District Magistrate has committed an illegality. The second contention of the petitioners is that with regard to the same property, a suit for partition is already pending before the Delhi High Court being Original Suit No.767/2011, where some of the property lies in the territory of Delhi and the remaining in the territory of Uttarakhand. It has also been argued that the District Magistrate can raise all objections which he would have before the Delhi High Court. 4. As far as invoking of its powers under Section 29 of the Act, it appears that /the Collector has not proceeded in accordance with law. This court is of the opinion that in the present matter firstly there was no wide publicity done by the District Magistrate before passing the order under Section 29 of the Act and that the subsequent order which was passed upon the directions of this court on 11.05.2012 and the notice itself shows that the District Magistrate went with the presumption that the property has actually devolved with the government and consequently what he did was merely a formality while looking at the representations of the petitioners. 5. Section 29 of the Act reads as under: “29. Failure of heirs. – If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.” 6. Failure of heirs would mean total absence of heirs. There is a heavy onus on the State Government to establish that the property in question escheats to the Government because there was a failure of heirs on the said property. The Government has not been able to discharge this onus. Failure of heirs would mean total absence of heirs. There is a heavy onus on the State Government to establish that the property in question escheats to the Government because there was a failure of heirs on the said property. The Government has not been able to discharge this onus. The only ground taken by the Government while rejecting the claim of the petitioners is that they do not have a decree of the court, which declares them as heirs of the deceased Smt. Krishan Kaur. 7. While dealing with this aspect of escheats, the Hon’ble Apex Court in State of Bihar Vs. Radha Krishna Singh & others 1983 (3) SCC 118 held as follows:- “272. It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State.” 8. In the instant case, the person who died intestate is a female Hindu and a female Hindu is a full owner of the property. The deceased Smt. Krishan Kaur was the sole owner of the said property, as claimed by the petitioners that the property was purchased by the deceased in an auction sale. There is a definitely a claim by the persons who claim to be the heirs of a female Hindu and therefore, the property has to devolve as per Section 15 read with Section 16 of the Hindu Succession Act. The property will only escheat to the Government, in the event when it is proved that the intestate has left no heir qualified to succeed to her property. 9. This Court has been informed that a suit for partition of the property of the deceased is pending before the Delhi High Court. The property will only escheat to the Government, in the event when it is proved that the intestate has left no heir qualified to succeed to her property. 9. This Court has been informed that a suit for partition of the property of the deceased is pending before the Delhi High Court. It would be proper if the petitioners first implead the State of Uttarakhand and the Collector, District Dehradun, Uttarakhand as necessary parties in the said case so that the State of Uttarakhand can place its case before the Delhi High Court. The State Government is also at liberty to pursue any other remedy available to it. Be that as it may, since the State has not fully discharged its burden while passing the impugned order, the impugned order dated 11.05.2012 is liable to be set aside and is hereby set aside. However, purely in the interest of justice it is directed that till the claim of the petitioners is decided by the appropriate court, the property in question shall remain in the custody of the State Government as custodia legis and till the matter is finally adjudicated by the appropriate court and the claims are settled, no third party interest shall be created on the property in question nor the nature of the property be changed in any manner. 10. The writ petitions are disposed of in the above terms. No order as to costs.